KARAWITA v. DIAS

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CA
Karawita v. Dias
197
KARAWITA
v.DIAS
COURT OF APPEALUDALAGAMA, J. ANDNANAYAKKARA, J.
CALA NO. 653/98DC HOMAGAMA NO. 835JULY 10 AND 31, 2001
Leave to appeal notwithstanding lapse of time – Ingredients – Civil ProcedureCode – s. 754, s. 755, s. 184 (1), s. 182 (2), 765 – Judgment delivered in theabsence of a party – Counsel taking notice.
The petitioner seeking leave to appeal notwithstanding lapse of time contendedthat although she was present in Court on 02. 04. 98, on which date the judgmentwas scheduled to be delivered, it was postponed for 25. 05. 98. Thereafter, sheleft Court but later had discovered that the judgment has been pronounced on
04. 98, in the afternoon without notice and in her absence.
Held:
The record clearly establish that at the time the judgment was pronouncedthe Counsel representing both the plaintiff and the respondent were presentin Court and it was in the presence of both Counsel that the judgmenthad been pronounced, and the petitioner's Counsel had taken notice ofthe judgment when it was delivered on 02. 04. 98 in the afternoon.
Though judgment should be pronounced in compliance with s. 184 (1) ands. 184 (2) as far as the instant case is concerned, the petitioner's counselhad taken notice of the judgment on behalf of the petitioner when it waspronounced.
Taking notice of a judgment by an Attorney-at-Law is sufficient compliancewith s. 184 and taking notice of a judgment by an Attomey-at-Law is sameas receiving notice by a party in the case.
198
Sri Lanka Law Reports
[2002J 2 Sri LR.
Per Nanayakkara, J.
‘If a client or an instructing Attorney is permitted to question or challengethe entries maintained by a Judge in the normal course of his official duties,on the basis that no authority, was given to the Counsel by the instructingAttorney to appear in the case it will not only jeopardise the professional careerof the Counsel but also open the floodgate to impugn the orders made byCourts on this frivolous ground."
In the absence of any evidence from the Counsel as to what happenedon the day on which the judgment was delivered, this Court has to presumethe Counsel was properly instructed by the instructing Attorney to appearin this case, and take notice of the judgment.
APPLICATION for leave to appeal from an order of the District Court of Homagama.
Cases referred to :
Gunawardena v. Ferdinands – 1982 1 SLR 256.
David v. Choksy – 1998 1 SLR 302.
Shell Gas Company v. All Ceylon Commercial & Industrial Workers' Union -1998 1 SLR 122.
Seebert Silva v. Aronona Silva and Others – 60 NLR 272.
A. B. N. Amro Bank v. Conmix (Pvt) Ltd. and Others – 1996 1 SLR 4.
R. C. Gooneratne for the petitioner.
Harsha Soza for the respondent.
Cur. adv. vult.
September 21, 2001
nanAyakkara, j.
This application, by way of leave to appeal notwithstanding lapse oftime, has been made by the defendant-petitioner (petitioner), underthe provisions of the chapter LX of the Civil Procedure Code againsta judgment delivered on 02. 04. 98 by the learned District Judge ofHomagama.
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Karawita v. Dias (Nanayakkara, J.)
199
The facts and circumstances which have given rise to thisapplication, are briefly as follows:
The plaintiff-respondent (respondent) instituted action against thepetitioner in the District Court of Homagama praying, inter alia, thatthe respondent be declared the owner of the premises in suit, that 10the deed conveying the premises in suit in favour of the petitionerbe declared null and void, an enjoining order, damages and costs.
At the conclusion of trial, the learned District Judge had fixed thedate of delivery of the judgment for 02. 04. 98. On this day the learnedDistrict Judge having called the case in Court in the morning hadpostponed the delivery of the judgment for 24. 05. 98. Having postponedthe judgment for 24. 05. 98, the learned District Judge again on thesame day had called the case in Court in the afternoon in the presenceof the lawyers had delivered his judgment holding in favour of therespondent. It is against this judgment the petitioner has sought relief 20by way of leave to appeal in this application.
The petitioner's position in this case is that she was presentpersonally in Court without the instructing Attorney in the morning of2nd April, 1998, the day on which the judgment was scheduled tobe delivered, and as the judgment was postponed for 29. 05. 98, sheleft the Court premises in the belief that the judgment would bedelivered on 29. 05. 98 as indicated by Court earlier. Later she becameaware that the judgment had been, in fact, delivered on the day(02. 04. 98) on which it was originally scheduled to be delivered at1.10 p.m. in the afternoon, in her absence and without any notice 30to her. She has further stated that she had not instructed a lawyerto appear on her behalf on the date to take notice of the judgment.
It was only when she appeared in Court on 29. 05. 98, and afterperusing the case record that she discovered that the judgment hadbeen delivered on 02. 04. 98 in the afternoon in her absence, withouther knowledge and any notice. As a result she was prevented bycauses beyond her control from complying with sections 754 and 755of the Civil Procedure Code in preferring this application.
200
Sri Lanka Law Reports
[2002] 2 Sri L.R.
When this matter was taken up for argument on 07. 06. 2000 theteamed Counsel for the petitioner submitted that as the judgment 40had been delivered in the absence of the petitioner without noticeto her, there had been non-compliance with the provisions ofsections 184 (1) and 184 (2) of the Civil Procedure Code which shouldhave been observed in the delivery of a judgment. The procedureto be adopted in delivering a judgment is clearly set out in sections184 (1) and 184 (2) of the Civil Procedure Code, and the compliancewith the section is a mandatory requirement and the failure to observeits provisions had caused grave prejudice to the petitioner and resultedin her failure to refer this appeal within the time stipulated by section755 of the Civil Procedure Code. In other words, Counsel submitted sothat she was prevented from causes beyond her control, complyingwith the sections 754 and 755 of the Civil Procedure Code.
He further submitted, that there is a duty cast on the District Judgeto ensure compliance with the mandatory requirements of theprovisions of sections 184 (1) and 184 (2) in pronouncing the judgment.
As far as the instant case is concerned, the judgment was notpronounced in accordance with the provisions of this section andthere is a failure on the part of the learned District Judge to givenotice to the petitioner or to the registered Attorney as required bysections 184 (1) and 184 (2) in delivering the judgment.60
The Counsel further submitted that the petitioner has a good andvalid ground of appeal, and the documents and other relevantmaterial filed by the petitioner will establish that the petitioner hasa valid ground of appeal.
The learned Counsel referred us to the following authorities insupport of this proposition:
Gunawardena v. Ferdinands(,) and David v. Choksy!2
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Karawita v. Dias (Nanayakkara, J.)
201
Responding to the argument advanced by Counsel for the petitioner,the learned Counsel for the respondent submitted that the petitioner'sfailure to comply with the provisions of section 755 of the Civil 70Procedure Code remains unexplained and the circumstances whichprevented the petitioner from preferring the appeal within thestipulated time should have been unequivocally and clearly set outin the petition.
Referring to the circumstances in which the Court is empoweredto entertain a petition of appeal notwithstanding lapse of time. In spiteof the fact that the provisions of sections 754 and 755 have not beenobserved, Counsel submitted the petitioner should have satisfied thefollowing conditions before she becomes entitled to the relief claimedby her. They are briefly as follows: That the petitioner was prevented sofrom appealing by causes not within her control, the petitioner hada valid ground of appeal, and that it is inequitable to disturb the decree.
As these conditions have not been satisfied by the petitioner, she isnot entitled to the relief prayed for in the petition.
Counsel further submitted, at the time the judgment was pronounced,Counsel representing both the petitioner and the respondent werepresent in Court, and it was in their presence that the judgment hadbeen pronounced and now the petitioner cannot be heard to say thatthe judgment was delivered in her absence and without notice asrequired by sections 184 (1) and 184 (2).90
The relevant entries in the case record in regard to the matterestablish the factual position and the petitioner cannot now controvertwhat is stated in the record.
At this stage it is necessary to determine the question whetherthe petitioner is entitled to the relief that has been claimed in thisapplication. The petitioner's main relief is that she be allowed to appeal,notwithstanding lapse of time. To determine the question whether thepetitioner is qualified for the relief claimed, a careful analysis of the
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(2002) 2 Sri L.R.
petitioner's case in the light of submissions of the parties, and relevantauthorities cited will be important.100
The petitioner's main argument was that although she was presentin Court on the day (02. 04. 98) on vyhich the judgment was scheduledto be delivered, as the judgment was postponed for a subsequentdate (25. 05. 98) she left the Court in the belief that the judgmentwould be delivered on that subsequent date. But, later she discoveredthat the judgment had been pronounced on 02. 04. 98 in the afternoonwithout notice and in her absence.
It should be mentioned at the outset that the position taken upby the petitioner in this case is not at all convincing and borne outby the entries that have been made in the case record. A careful i’operusal of the entries made in the record clearly establish that theactual position is far from what is made out by the petitioner in thiscase. There is a clear and unambiguous entry in the record toshow that at the time the judgment was pronounced the Counselrepresenting both the plaintiff and the respondent were present inCourt and it was in the presence of both Counsel that the judgmenthad been pronounced, and the petitioner's Counsel had taken noticeof the judgment when it was delivered on 02. 04. 98 in the afternoon.Therefore, the petitioner cannot now be heard to say that thejudgment was pronounced in her absence and without notice to her120as required by sections 184 (1) and 184 (2) of the Civil ProcedureCode. I
I am in agreement with the learned Counsel when he says thejudgment should be pronounced with notice to the parties or theirregistered Attorneys in compliance with sections 184 (1) and 184 (2)of the Civil Procedure Code. As far as the instant case is concerned,it is incontrovertible that Counsel Mr. Suwandaratne had taken noticeof the judgment on behalf of the petitioner when it was pronouncedin Court on 02. 04. 98 at 1.10 in the afternoon. Taking notice of ajudgment by an Attorney-at-Law is sufficient compliance with the 130
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Karawita v. Dias (Nanayakkara, J.)
203
section and taking notice of a judgment by an Attorney-at-Law is sameas receiving notice by a party in the case. As such there is sufficientcompliance with sections 184 (1) and 184 (2) of the Civil ProcedureCode.
The petitioner states although it is recorded in the journal entryas the petitioner's Attorney-at-Law being present in Court neither thepetitioner nor her instructing Attorney, Mrs. Sheila Jayawardena, wasin fact, present in Court nor did they have notice of it at the timethe judgment was pronounced subsequently in the afternoon of02. 04. 98.140
If that be the correct position, does it mean that the entriesmaintained by the learned District Judge is false and incorrect or doesit mean that neither she nor her instructing Attorney-at-Law, Mrs.Jayawardena, did not authorise Counsel Mr. Suwandaratne to appearon her behalf or that Mr. Suwandaratne had appeared or taken noticeof the judgment without instructions from the client or instructingAttorney. What is the implied suggestion that the petitioner is making.When she says, that she did not instruct any Counsel to appear inCourt on the day on which the judgment was delivered. She impliedlysuggests that Counsel Mr. Suwandaratne, has appeared in the case 150without instructions and taken notice of the judgment, when it wasdelivered on 02. 04. 98. If were to accept it as the correct position,it is bound to have a serious impact on the professional career ofMr. Suwandaratne, as the inevitable inference would be that he beguilty of an act of professional misconduct, and breach of professionalethics. Mr. Suwandaratne is the best person who can enlighten thisCourt on what exactly took place, in Court on that day, but the failureon the part of the petitioner to furnish this Court with some kind ofevidentiary proof from Mr. Suwandaratne which would throw some lightupon the matter, to say the least, is intriguing and puzzling. Perhaps 160Mr. Suwandaratne would have controverted the stance taken up bythe petitioner and taken up a totally different position, had he beenapproached in regard to the matter. Therefore, in the absence of any
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[2002] 2 Sri LR.
evidence from Mr. Suwandaratne as to what happened on the dayon which the judgment was delivered, this Court has to presume thatCounsel Mr. Suwandaratne was properly instructed by the instructingAttorney to appear in the case, and take notice of the judgment.
It should also be mentioned that when an instructing Attorneyinstructs another Counsel to appear on behalf of a client, the Courtpresumes that the Counsel has been properly instructed by theinstructing Attorney to appear on behalf of the client. If a client oran instructing Attorney is permitted to question or challenge the entriesmaintained by a Judge in the normal course of his official duties, onthe basis that no authority was given to the Counsel by the instructingAttorney to appear in the case it will not only jeopardize the professionalcareer of the Counsel, but also open the floodgate to impugn theorders made by Courts on this frivolous ground. I have no doubt thatCounsel Mr. Suwandaratne did appear and took notice of the judgmentin this case with the full knowledge of the instructing Attorney andthe petitioner when it was delivered on 02. 04. 98.180
It should also be observed, that there is a presumption that allthe official acts have been validly done, and the Court is entitled topresume that entries maintained by the Judge is in compliance withthe requirements contemplated by section 92 of the Civil ProcedureCode, it is only in exceptional circumstances and extreme situationsthat a correction of a journal entry made by Court can be challengedor impugned by a party. This position is clearly enunciated by Jayasuriya,
J. in the case of Shell Gas Company v. All Ceylon Commercial andIndustrial Workers' Union at page 122. This position is also buttressedby the case of Seebert Silva v. Aronona Silva & Others, and the 190case of ABN Amro Bank v. Conmix (Pvt) Ltd. and Others,<5) Therefore,the petitioner cannot now be permitted to impugn the correctness ofthe entries.
Mention should also be made of an affidavit filed by Mrs. S.Jayawardena, instructing Attorney. In her affidavit she merely states
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Karawita v. Dias (Nanayakkara, J.)
205
she advised the petitioner to be present in Court on 02. 04. 98 andtake notice of the judgment but does not specifically and unequivocallystate that she did not instruct Mr. Suwandaratne to appear on02. 04. 98 and take notice of the judgment. Therefore, her affidavitin this respect does in no way help this Court to resolve the matter 200in issue.
It is also apparent from the documents filed in this case by theparties, that pursuant to the judgment of the District Court the petitionerhad been ejected from the property in suit, and the respondent hadbeen restored to the possession of the property. It appears that afterthe restoration of the possession the respondent had been on theland for some time acted on the basis that his possession wouldthereafter be undistrubed and uninterrupted. Therefore, I am of theview that it is inequitable to disturb the decree at this stage.
There is another matter to which some reference should be made. 210It is that, some of the documents that have been filed along with thisapplication are not certified and the petitioner himself concedes thatthe plaint and the answer filed along with the petition are uncertified.
It is my view, on this ground alone, that this application should berejected, as there is no sufficient compliance with the rules of procedurein preferring an application to this Court. It has been repeatedly heldand emphasized in a series of cases by this Court that there shouldbe sufficient compliance with the rules of procedure by petitioners.Moreover, the petitioner's non-compliance has not been explained.
Therefore in view of the above-mentioned reasons this application 220for leave is refused. The respondent is entitled to costs fixed atRs. 5,000.
UDALAGAMA, J. – I agree.
Application for leave refused.